Andhra Pradesh High Court - Amravati
G.V.V.Satyanarayana vs State Of Andhra Pradesh on 22 July, 2022
Author: D.Ramesh
Bench: D.Ramesh
THE HONOURABLE SRI JUSTICE D.RAMESH
WRIT PETITION NO.13329 OF 2021
ORDER:
This petition is filed under Article 226 of the Constitution of India, seeking to declare the action of the 3rd respondent in not entertaining registrations over the petitioner's property on the ground that the lands are in the list of prohibited properties under Section 22-A of the Act, 1908 despite the 1st respondent ordered to delete the petitioner's property from prohibited list vide Memo No.REV/21021/92/2017-ASSG.II-1 dated 1.5.2018 is illegal and arbitrary and without jurisdiction; consequently to direct the 3rd respondent to give effect to the orders passed by the 1st respondent and to register the sale transactions of the petitioner in respect of the subject land admeasuring Ac.4.93 cents in Sy.No.134/1, Paradesipalem Village, Visakhapatnam.
2. Heard learned counsel for the petitioner and learned Government Pleader for Revenue as well as the learned Government Pleader for Stamps and Registration.
3. As per the averments made in the writ petition, the father of petitioner late Sri Thammi Raju was an Ex-Serviceman and he was assigned an extent of Ac.4.93 cents in Sy.No.134/1 of Paradesipalem Village, Visakhapatnam vide D.R. file bearing No.116/71 dated 23.06.1970. After demise of his father the petitioner, being inherited the said property, is in continuous possession and enjoyment of the property without any interruption from any corner.
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4. When it came to the notice of the petitioner that said property was enlisted under Section 22-A of the Registration Act, 1908, he submitted a representation to the government on 13.02.2015 for deletion of the property from the prohibited properties list. Accordingly, the 1st respondent has considered the representation, after thorough enquiry with regard to the genuineness of the claim of the petitioner, passed orders vide memo No.REV/21021/92/2017-ASSG.II-1 dated 01.05.2018 and held that the petitioner's father is an ex-serviceman and the subject land was assigned to the father of the petitioner. Accordingly the subject land was deleted from the list of prohibitory properties notified under Section 22-A (1) of the Registration Act, 1908 [for short referred as 'the Act'].
5. Subsequently, the 2nd respondent i.e., the District Collector, Visakhapatnam has approached the 1st respondent and requested to review the orders passed by the 1st respondent dated 01.05.2018. However, the 1st respondent has declined to review the orders and dismissed the review application of the 2nd respondent, vide orders in Memo No.REV/21021/92/2017- ASSG.II-1 dated 31.10.2018. Since the authorities have not inclined to remove the said lands from the list under Section 22-A (1) of the Act, the petitioner represented again before the 1st respondent, based on the same the 1st respondent has issued a memo on 12.12.2018 directing the 4th respondent to implement the orders dated 01.05.2018 for deletion of subject land from the list of prohibited properties.
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6. Subsequently, when the petitioner approached the office of the 3rd respondent for the purpose of registration of sale transaction as to the said property, the office of the 3rd and 4th respondents refused to entertain the registration, stating that the land of the petitioner's is still being shown in the list of prohibited properties in their records, therefore, they cannot entertain the registration. Though the proceedings of the 1st respondent was brought to the notice of the 3rd respondent, office of the 3rd respondent stated that until and unless they receive orders of the District Collector, they cannot delete the lands from the prohibitory properties list.
7. Contention of the writ petitioner is that the 3rd respondent being the statutory authority under the provisions of the Registration Act 1908, even after receipt of the communication from the higher authorities in respect of the Government lands, keeping the subject property in the prohibitory list under section 22-A of the Act, is contrary to the provisions of the Act and the Rules made there under. In the instant case, when the government itself has taken a decision disowning a property and issued orders deleting the lands from the prohibitory properties list, the 3rd respondent is under obligation to delete the said property from the prohibited list. Thus, the 3rd respondent being an Executive Authority and subordinate to the 1st respondent , has adhere to the orders passed by the government for the purpose of the listing and delisting the properties form the list of prohibited properties under Section 22-A of the Act. Once the government held that certain land delisted from the list under Section 22-A (1) 4 of the Act, the 3rd respondent is bound to obey and delete the same from the prohibitory list. In the said circumstances, left with no option, the petitioner has filed the present wit petition.
8. Replying to the said averments made in the writ affidavit, the 2nd respondent filed counter and denied the allegations/averments made in the writ petition. It is submitted in the counter that as per their records, the father of the petitioners that Sri Thammi Raju was assigned an extent of Ac.4.93 cents in SurveyNo.134/1 of Paradesipalem Village under Ex-serviceman category is not correct. As per the report of the Revenue Divisional Officer, Visakhapatnam the subject land is classified as AWD (Gayalu) with a total extent of Ac.4-93 cents as per the revenue records, and said land was assigned in favour of Sri Gorle Thammiraju, Son of (late) Sayanna vide DR file bearing No.116/71, dtd.23.06.1970 under landless poor category. Further stated that in the year 2005, the subject land was handed over to the VUDA as per the proceedings dated 09.12.2004 vide delivery receipt No.1/2005/Sp.R.I., dated 22.01.2005 of Tahsildar, Visakhapatanam Rural Mandal. The VUDA has formed a kutcha road and erected caution board in the subject land. Aggrieved by the same, the assignee has filed a Writ Petition No.15332 of 2007 wherein this Court issued orders on 21.11.2012 directing the Principal Secretary to consider and pass appropriate orders in the matter as per recommendations made by the then District Collector. Accordingly the petitioner made a representation to the 1st respondent on which the Government has issued Memo No.145/Assn.I(2)/2013-2 dated 25.06.2013 and directed the District Collector to examine the matter as per 5 G.O.Ms.No.307, Revenue (Assn.I) Department, dated 06.06.2013 and submit a report to CCLA . Further the Government again issued a memo dated 18.07.2017 directing the District Collector, Visakhapatnam to take further action on the representation of the petitioner herein, under the provisions of G.O.Ms.No.279, dated 04.07.2016.
9. Further it is submitted in their counter that in the year 2018, the then District Collector, Visakhapatnam has enquired into the matter and issued rejection order vide proceedings dated 22.03.2018, stating that the application for issuance of NOC deserves no consideration as the purported DR file bearing No.116/71, dated 23.06.1970 is not in accordance with the prescribed procedure. After that the Government has considered the representation made by the petitioner and issued the proceedings on 01.05.2018 for deleting the subject land to an extent of ac.4.93 cents in Sy.No.134/1 of Paradesipalem village from the list of prohoibitory properties notified under Section 22A(1) of the Act and also directed the Director and Inspector General of Stamps to communicate the order to the concerned registering authority for deletion from the prohibitory list and take necessary action accordingly.
10. After that the District Collector, Visakhapatnam vide letter dated 19.06.2018 raising certain points has requested to review the above said orders and to cancel the same at the earliest, but the same was rejected by the government, through its memo dt.31.10.2018 and subsequently issued directions to the Commissioner and Inspector General of Registration and Stamps, 6 A.P., Vijayawada to implement the orders of the government dated 01.05.2018 for deletion of subject land from the prohibitory list.
11. Further it is stated that on Sri Devara Appanna and 13 others filed a Writ Petition No.3169 of 2008 against 1) the Principal Secretary to Revenue 2) Joint Collector, Visakhapatnam, 3) Tahsildar, Visakhapatnam and 4) Vide Chairman, VUDA with a prayer not to dispossess the petitioners from the land measuring an extent of Ac. 80.00 cents in Sy.No.134 and 143 of Paradesiptalm Village or to alienate the same by the public auction or otherwise, also sought consequential direction that the petitioners therein are entitled to continue in the possession as on the notified date and it cannot be disposed except after consideration of their claims in accordance with Section 3(d) and other the provisions of the Estate Abolition Act. In the said Writ Petition the respondents filed counter and also stay vacate petitions before the Court and the same is still pending for adjudication.
12. Considering the said request, the 1st respondent vide letter dated 26.07.2021 has issued the following orders vide Memo No.REV/21021/92/2017/ASSG-II-REV, dated 31.08.2021:-
"... After careful examination of the issue, hereby order to keep the Memo No.REV/21021/ASSG II(1)/2017 dated 01.05.2018 in abeyance until receipt of the final orders in W.P.No.3169/2008 from the Hon'ble High Court, considering the remarks of the District Collector, Visakhapatnam and pending W.P.No.3169/2008. The District Collector, Visakhapatnam and the District Registrar, Visakhapatnam shall take further necessary action accordingly in the matter."7
13. It is further averred in the counter that in view of the above orders issued by the Government the petitioner has no locus standi to file the present writ petition, further under any ground, as subject assignment is made to the father of the petitioner, under landless poor categorically only, which is established in the DR file. In view of the above assertions, requested to dismiss the writ petition.
14. In the above factual matrix, learned counsel for the petitioner has submitted that the father of the petitioner is an ex-service man, and considering his request, the government has allotted and assigned the land in an extent of Ac.4.93 cents in Sy.No.134/1 of Paradesipalem Village, Visakhapatnam on 23.06.1970. Despite requests made by the petitioner, the 2nd respondent office has not considered the same, hence, he filed a Writ Petition, and as directed by the court, the petitioner made a request to the Government, considering the same, the government has passed an order, after getting records from the concerned authorities, on 01.05.2018 which reads as follows:-
" In view of the above circumstances and under the provisions of Para-6 (i) & (ii) of G.O.Ms.No.279, Revenue (Assn.I) Department, dated 04.07.2016, the subject land in Sy.No.134/1 to an extent of Ac.4.93 cents situated in Paradesipalem village of Visakhapatnam Rural Mandal, Visakhapatnam District is hereby deleted from the list of Prohibitory properties notified under Section 22-A (1) of Registration Act, 1908."
15. Subsequently, on the request made by the 2nd respondent for review to cancel the said orders, after considering the merits of the 8 case, the Government has rejected the review application on 31.10.2018, which reads as follows:
"4. Accordingly, the request of the District Collector, Visakhapatnam dated 19-06-2018 is hereby disallowed and he is directed to implement the orders of Government dated 01.05.2018 within two (2) weeks and send compliance report to the Government."
16. Thus, despite the above two orders the 3rd and 4th respondents have not considered the request of the petitioner for deletion, based on the representation of the petitioner, the Government /1st respondent has issued one more Memo dated 12.12.2018 directing the 4th respondent, as follows:-
"5. Keeping in view of the Government Orders issued supra and after examination of the representation of the individual, it is hereby instructed the Commissioner and Inspector General of Registration and Stamps, A.P., Vijayawada to implement the orders of the Government issued in Memo No.21021/91/Assn.II(1)/2017, dated 01.05.2018 for deletion of subject land from the list of Prohibitory properties notified under Section 22-A(1) of Registration Act, 1908."
17. Learned counsel for the petitioner further contended that despite the above directions, the respondents highhandedly not considered and not deleted the subject properties from the prohibitory list under section 22-A of the Act and submitted that the orders passed by the 1st respondent became final and the same was not challenged by any party, before any competent court. In spite of the orders passed by the 1st respondent, the respondents 2 to 4 have failed to implement the said orders. Furthermore, instead of implementing the said orders, the 3rd respondent has refused to entertain registration stating that unless and until they receive 9 orders from the 2nd respondent, they cannot receive and register the properties. It clearly discloses that the respondents 2 to 4 have not implemented the orders passed by the 1st respondent vide Memo dated 31.08.2018 as well as subsequent memo on 12.12.2018.
18. With the above background, Sri V.V.Satish, learned counsel appearing for the petitioner has assailed the action of the respondents on the following grounds, firstly- that the 1st respondent being the statutory authority and having passed the orders, under application made by the petitioner, though the 1st respondent has no power to entertain the review application being quasy judicial authority, the same was also entertained and rejected vide orders dated 31.10.2018. Hence, the 2nd respondent has no option except to implement the orders of the 1st respondent.
19. Secondly, though the res pondents have relied on the Memo of the 1st respondent dated 31.08.2021, is nonest in the eye of law as per the observations of the Hon'ble Supreme Court in KalaBharati Advertising Vs. Hemant Vimalnath Narichania and Others1. Hence, the present order passed by the 1st respondent on 31.08.2021 cannot be sustained, which is not only contrary to the observations of the Supreme Court but also violation of principles of natural justice.
20. Finally, he contended that the secured rights of the petitioner cannot be unsettled after lapse of 50 years by virtue of the impugned action of the respondents.
1 (2010) 9 SCC 437 10
21. Further learned counsel for the petitioner vehemently argued that in the entire counter filed by the respondents they have not denied that the petitioner's father is an Ex-serviceman and granting of patta to the father of the petitioner. It is not their case that the patta granted in favour of the petitioner's father was cancelled or they resumed the land, in such circumstances, the respondents cannot refuse the benefit which was accrued by way of assignment, granted in the year 1970 after lapse of 50 years.
22. Learned counsel further submitted that as per the law laid down by this Court in catena of decisions as well as in the Writ Petition No. 26737 of 2018, this court held that the respondents are not entitled to take the plea that the patta granted is not under Ex-serviceman category but granted under landless poor category only.
23. In W.P.No.26737 of 2018 this court observed that basing on the proceedings, the respondents have contended that the said land was assigned to him as DKT patta land in the normal course, but not treating him as Ex-serviceman, therefore, the land is only heritable but not inalienable. Admittedly, one Masuri Hanumantha Rao worked in the Indian Army and he was an ex- serviceman. The DKT patta was issued in the year 1971 and it cannot be assumed for the moment that the said patta was issued to him treating him as a landless poor only. Therefore, the Patta must have been issued considering his past history as War Veteran or ex-serviceman. Hence, the contention of the respondents that simply the land was assigned under DKT Patta but not treating him as Ex-Servicemen, and they are not entitled to alienate the 11 same. Negotiating said contentions, this court has allowed the Writ Petition, treating the said Patta granted under Ex-serviceman patta.
24. Further learned counsel brought to the notice of the court that the Writ Petition is filed on 5th July 2021. On perusal of the Memo filed by the respondents along with counter, dated 31.08.2021 clearly discloses that after notice, in the said Writ Petition, the 2nd respondent has made a letter to the 1st respondent on 18.08.2021, which clearly discloses that only to deny the benefits to the petitioner, contemplated the present action.
25. At any rate as per the observations of the Hon'ble Apex Court in KalaBharati Advertising's case cited supra, once the orders have passed as a quasy judicial authority, the 1st respondent has no power to review the said action unless statute prescribes.
26. Learned counsel appearing on behalf of the petitioner has further contended that after filing the Writ Petition, on the request made by the 2nd respondent, the 1st respondent has passed the orders on 31.08.2021. Though said orders were not served on the petitioner, in view of the observations made by the Hon'ble Apex Court, the orders are nonest in the eye of law, hence, they are not inclined to impugne the said orders in the present Writ Petition.
27. Learned Government Pleader for Revenue appearing for the respondents, based on the averments made in the counter, submitted that according to the records, the petitioner's father was granted patta under landless poor category, hence, the properties has included under Section 22-A (1) of the Act and it cannot be 12 deleted. He further submitted that with regard to the subject property, some third parties have filed a Writ Petition in the year 2008 i.e., W.P.No.3169 of 2008 with regard to the total extent of land in Ac.80-00 cents in Sy.No.134 and 143 of Paradesipalem Village for alienation. However, said Writ Petition is pending. Therefore, unless and until the Writ Petition is disposed of, the case of the petitioner cannot be considered for deletion from the prohibitory list under Section 22-A of the Act. Apart from the above, as requested by the 2nd respondent, it was considered by the government vide proceedings dated 31.08.2021 that the proceedings dated 01.05.2018 which was relied upon by the petitioner were kept under abeyance. Hence, in view of the said circumstances requested to dismiss the present writ petition.
28. Considering the submissions made by both the counsel, the point that arise for consideration before this Court is entertaining the applications by the 1st respondent by way of review is sustainable or not?
29. In fact, on the very same question arose before the Hon'ble Supreme Court in KalaBharati Advertising Vs. Hemant Vimalnath Narichania and Others2, it is held that -
"12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/ quasi-judicial orders. In absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed is ultra-vires, illegal and without jurisdiction. (vide: Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar & Anr., (AIR1965 SC 1457); and Harbhajan Singh v.Karam Singh & Ors., (AIR 1966 SC 641)).2
(2010) 9 SCC 437 13
13. In Patel Narshi Thakershi & Ors. v. Shri Pradyuman Singhji Arjunsinghji, AIR 1970 SC 1273; Maj. Chandra Bhan Singh v. Latafat Ullah Khan & Ors., AIR 1978 SC 1814; Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidhyalaya, Sitapur (U.P.) & Ors., AIR 1987 SC 2186; State of Orissa & Ors. v. Commissioner of Land Records and Settlement, Cuttack & Ors., (1998) 7 SCC 162; and Sunita Jain v. Pawan Kumar Jain & Ors., (2008) 2 SCC 705, this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute.
Jurisdiction of review can be derived only from the statute and thus, any order of review in absence of any statutory provision for the same is nullity being without jurisdiction.
14. Therefore, in view of the above, the law on the point can be summarised to the effect that in absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification/ modification/correction is not permissible.
30. In support of his contentions, learned counsel placed reliance on the decisions passed by the Division Bench of this court in Koya Veeraju V. Mandal Revenue Officer, Gollprolu, East Godavari District3, and also in Dasari Satyanarayana Vs. Dasari Bapayya4.
31. In view of the observations of the Hon'ble Apex Court and the observations of Division Bench, it is very clear that the once the orders passed by the higher authority, without any provision conferred under statute, said authority is not entitled to entertain the applications/petitions filed by either of the parties. Admittedly in the instant case, the Government being a highest authority has passed orders on 01.05.2018, though there is no provision under 3 1998 (1) ALT 25 4 AIR 1963 AP 148 14 the Act, the 1st respondent based on the application filed by the 2nd respondent has confirmed the orders vide proceedings or 31.10.2018. Hence, in the said circumstances the 1st respondent has no power to entertain any further application, to review the original orders as there is no provision contemplated under the statute and the duty cast upon the Government to avoid the litigation. But in the instant case the state itself is protracting the litigation without any reason, which action is unfortunate and by virtue of that the citizens have been victimised.
32. On perusal of the present action of the 1st respondent, entertaining the review application after filing the Writ Petition and keeping the earlier memos for abeyance, is nothing but victimising the public and interfering with the rights, guaranteed under Article 300-A of the Constitution of India, since the citizens would continue to live their lives, based on the trust they repose in the State. When the public authorities fail to adhere their representations, without providing adequate reason in entertaining the applications, with whims and fancies should be curtailed.
33. As observed by the Hobn'ble Apex Court in KalaBharati Advertising's case, in the absence of any statutory provision, the impugned order is a nullity being without jurisdiction. Therefore, the fact that in the absence of any statutory provision, clarification/modification, correction, is not permissible.
34. It is an admitted fact that application of the father of the petitioner was considered and accordingly subject land was granted in favour of him way back in the year 1970 and even no 15 document or record produced stating that the said patta has been cancelled or resumed the land from the petitioner's father or from the petitioner. Except stating that as per the D.R. file bearing No.116/71 patta has been granted under landless poor category.
35. It is not in dispute that the 1st respondent while considering the record, has passed orders on 01.05.2018 and it became final. Once the order became final, the respondents estopped from the very taking the same plea again and again, when once the orders passed by the Government and the same became final, the 1st respondent is estopped from entertaining further applications which are contrary to the statutory provisions as well as the violation of constitutional rights guaranteed under Article 300-A of Constitution of India.
36. It is not out of place to mention that notifying the writ petition No.3169 of 2008 in the memo dated 31.08.2021 filed by some third parties, for alienation of the said land in Sy.No.134 and 143 of Paradesipalem Village [which includes the subject land] for market value, shows the vindictive attitude of the respondents.
37. Though the writ petitioner has not questioned the orders passed by the 1st respondent vide Memo dtd.31.08.2021 keeping the earlier proceedings dated 01.05.2018 under abeyance, is held that having without jurisdiction and nonest in the eye of law, in view of the observations of the Hon'ble Apex Court in Kala Bharati Advertising's case, accordingly the 1st respondent is not entitled to entertain or to conduct further enquiry in the subject. The point is answered accordingly.
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38. Considering the above facts and circumstances and in view of the observations of the Hon'ble Apex Court on the identical issue, the Writ Petition is allowed with exemplary costs of Rs.25,000/- [Rupees Twenty Five Thousand only] each on the respondents 1 to 4, which shall be payable from their own funds, to the credit of A.P. High Court Legal Services Authority, Amaravathi. Further the respondents No.3 and 4 are directed to delete the subject property from the list under Section 22-A (1) of the Act forthwith and to receive and register the documents submitted by the petitioner, for registration as per the provisions of the Act.
As a sequel, miscellaneous applications pending, if any, shall also stand closed.
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JUSTICE D. RAMESH
Date: 22.07.2022
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THE HONOURABLE SRI JUSTICE D.RAMESH
WRIT PETITION No.13329 OF 2021
Date: -07-2022
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